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ELCDismissedEnvironment & Land Case 2 of 2018· [2023] KEELC 18761 (KLR)

Ole Sordo & another v County Government of Narok & 2 others

Environment and Land Court
13 July 2023
4,984 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused to throw out a landowner's suit against Narok County, ruling the attempt repeated an argument already decided in 2019.

What this practically means

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Executive summary

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The defendants in a land suit filed a Notice of Motion dated 24th April 2023 under Order 2 Rule 15(1)(a) of the Civil Procedure Rules seeking to strike out the plaintiffs' plaint on the ground that it disclosed no reasonable cause of action, contending that the suit rested on speculative apprehension of future demolitions and was not ripe for adjudication. The plaintiffs opposed, the 2nd plaintiff arguing the application was res judicata a ruling delivered by Kullow, J on 24th July 2019 dismissing a preliminary objection raising the identical complaint, and that no evidence is admissible on such an application. Justice C.G. Mbogo set out the settled principles for striking out pleadings, holding that the jurisdiction is discretionary, draconian and must be exercised sparingly where a pleading is plainly hopeless and incurable by amendment. The court reproduced the 2019 ruling in full and found that the issue of whether the plaint disclosed a reasonable cause of action had been substantively determined between the same parties litigating under the same title, satisfying all the conjunctive elements of res judicata under Section 7 of the Civil Procedure Act as explained by the Supreme Court in the Maina Kiai case. The court characterized the application as a waste of the court's time and dismissed it with costs to the plaintiffs, directing mention for further directions. The main suit remains pending before the court.

Key legal issues

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01

Whether the application to strike out the plaint was res judicata

Holding

The application was res judicata because the same issue - whether the plaint discloses a reasonable cause of action - was heard and determined by Kullow, J on 24th July 2019 between the same parties under the same title

Reasoning

The court reproduced the 2019 ruling and found that although raised by preliminary objection, the issue of whether the plaint disclosed a cause of action was dealt with substantively, as the court applied its mind to whether the facts pleaded disclosed any claim. The parties, title and subject matter were the same, satisfying Section 7 of the Civil Procedure Act conjunctively.

p. 9
02

Whether the plaint discloses no reasonable cause of action and should be struck out

Holding

The plaint was not struck out; striking out is discretionary and draconian, and a suit with a mere semblance of a cause of action should proceed to trial

Reasoning

Relying on D.T Dobie v Muchina and Blue Shield Insurance v Oguttu, the court held that the power to strike out must be used sparingly, only where the pleading is clearly untenable, and without embarking on the merits. The plaintiffs' apprehension of demolition and prior demolitions raised triable issues requiring evidence at trial.

p. 7
03

Whether the doctrine of ripeness could be determined on an Order 2 Rule 15 application

Holding

Ripeness, being factual in nature, could not be determined preliminarily without evidence; it was a matter for trial

Reasoning

The respondents submitted that ripeness deals with factual matters in contestation which must be subjected to the adversarial tools of trial, and that no evidence is admissible on an Order 2 Rule 15(1)(a) application. The court, having found the application res judicata, dismissed it without determining ripeness substantively.

p. 6

Legal principles established

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  • No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is incurable by amendment
  • All elements of res judicata under Section 7 of the Civil Procedure Act must be satisfied conjunctively

Court orders

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  1. 1.The Notice of Motion application dated 24th April 2023 is dismissed with costs to the plaintiffs/respondents
  2. 2.Mention on 26th July 2023 for further directions

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 15(1)(a)
  • Civil Procedure RulesOrder 2 Rule 15(2)
  • Civil Procedure ActSections 1A, 1B and 3B
  • Civil Procedure ActSection 7 (including Explanations 1-6)
  • Constitution of KenyaArticle 40(1)

Cases cited (29)

  • Okiya Omtatah Okoiti v Attorney General & another
    [2022] eKLR

    Res judicata as a matter of fact requiring evidence

  • Daniel Kibet Mutai & 9 Others v Attorney General
    [2019] eKLR

    Grounds of opposition relate only to points of law

  • Kennedy Otieno Odiyo & 12 Others v Kenya Electricity Generating Company Limited
    [2010] eKLR

    Grounds of opposition relate only to points of law

  • Faustina Njeru Njoka v Kimunye Tea Factory Limited
    [2022] eKLR

    Grounds of opposition relate only to points of law

  • George Kamau Kimani & 4 Others v County Government of Trans Nzoia & another
    [2014] eKLR

    Ingredients of res judicata require evidence of previous proceedings

  • Henry Wanyama Khaemba v Standard Chartered Bank Limited & another
    [2014] eKLR

    Ingredients of res judicata require evidence of previous proceedings

  • Greenhalgh v Mallard
    (1947) 2 ALL ER 257

    Relitigation of matters already decided

  • Kennedy Mokua Ongiri v John Nyasende Mosioma & Florence Nyamoita Nyasende
    [2022] eKLR

    First instance jurisdiction absent substantive determination

  • The Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others
    [2017] eKLR

    Elements of res judicata must be satisfied conjunctively

  • Republic v Baua Ali & another Exparte Mohamed Gituma & another
    [2021] eKLR
  • Abbott Laboratories v Gardener
    387 U.S 136 (1967)

    Doctrine of ripeness

  • Joseph Mboha v Speaker County Assembly of Siaya & another
    [2020] eKLR

    Illusory or abstract claims without factual matrix

  • Wanjiru Gikonyo & 2 Others v National Assembly of Kenya & 4 Others
    [2016] eKLR

    Illusory or abstract claims without factual matrix

  • Muchanga Investment Limited v Safari Unlimited (Africa) Limited & 2 Others
    [2009] eKLR

    Illusory or abstract claims without factual matrix

  • Republic v Nairobi City County Assembly; Ex parte Applicant; Wamunyoro Investments Limited
    [2020] eKLR

    Doctrine of ripeness

  • National Assembly of Kenya & another v Institute for Social Accountability & 6 Others
    [2017] eKLR

    Doctrine of ripeness

  • Karl Wehner Claasen v Commissioner of Lands & 4 Others
    [2019] eKLR

    Plaint disclosing a reasonable cause of action

  • D.T Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another
    [1980] eKLR

    Principles for striking out pleadings; no evidence admissible

  • Susan Rokih v Joyce Kandie & 6 Others
    [2018] eKLR

    Threat of demolition necessitating court intervention

  • Ternic Enterprises Limited v Waterfront Outlets Limited
    [2018] eKLR

    Prima facie defence ought to go to trial

  • Lalji t/a Vakkep Building Contractors v Casousel Limited
    (1989) KLR

    Prima facie defence ought to go to trial

  • Yaya Towers Limited v Trade Bank Limited (In liquidation)
    [2000] eKLR

    No evidence admissible on striking-out application

  • Michael Kalani Muatha v Kyalo Mwikya & another
    [2022] eKLR

    No evidence admissible on striking-out application

  • D.T Dobie & Company (K) Ltd v Muchina
    [1982] KLR 1

    Suit should not be summarily dismissed unless hopeless and incurable by amendment

  • Blue Shield Insurance Company Ltd v Joseph Mboya Oguttu
    [2009] eKLR

    Restatement of principles guiding striking out of pleadings

  • Madison Insurance Company Limited v Augustine Kamanda Gitau
    [2020] eKLR

    A suit with a mere semblance of a cause of action should proceed

  • Mukisa Biscuit Manufacturing Company Limited v West End Distributors Limited
    (1969) EA 696

    What constitutes a preliminary objection (in the 2019 ruling reproduced)

  • El-Busaidy v Commissioner of Lands & 2 Others
    (2002) eKLR

    Preliminary objection must rest on commonly accepted facts (in the 2019 ruling reproduced)

  • Cail Zeiss Stiftung v Ranjuer & Keeler Ltd and others (No.3)
    (1970) ChpD 506

    Power to strike out is discretionary, not mandatory (quoted in Blue Shield)

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit; application under Order 2 Rule 15(1)(a) of the Civil Procedure Rules and Sections 1A, 1B and 3B of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ole Sordo & another v County Government of Narok & 2 others", Case Analysis (2023). Environment & Land Case 2 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18761/eng@2023-07-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.